NOTE AND WARRANT PURCHASE
AGREEMENT
THIS NOTE AND
WARRANT PURCHASE AGREEMENT (the “Agreement”) is
effective as of February 5, 2007, by and between INDIA
GLOBALIZATION CAPITAL, INC., a Maryland corporation (the
“Company”) and OLIVEIRA CAPITAL, LLC
(“Investor”).
1. The
Loans, Notes and Warrants .
1.1 The
Loans . Subject to the terms and conditions of this Agreement,
Investor agrees to make a loan (the “Loan”) to the
Company in the aggregate principal amount of Three Million Dollars
($3,000,000.00) to be governed by the terms and conditions of, and
repaid in accordance with, this Agreement; provided, however, that
the Company’s board of directors may increase this amount at
its sole discretion. Subject to Section 4, in order to secure
repayment of the Loan, the Company shall grant a security interest
to the Investor in the Debentures pursuant to the terms and
conditions of the Pledge Agreement attached hereto as
Exhibit D .
1.2 The
Notes . The Loan made by the Investor pursuant hereto shall be
evidenced by promissory note (collectively, the
“Notes”) of the Company executed concurrently herewith
in the form attached hereto as Exhibit A .
1.3 The
Warrants . Subject to the terms of this Agreement, the Company
shall issue and sell to the Investor a warrant to purchase four
hundred twenty five thousand (425,00) shares of the Common Stock of
the Company (individually, a “Warrant” and
collectively, the “Warrants”), in substantially the
form attached hereto as Exhibit B . In the event of
subsequent Closings as provided in Section 1.4, subject to the
terms of this Agreement, in connection with each subsequent Loan
evidenced by a Note, the Company shall issue and sell to the
Investor a warrant to purchase fourteen thousand one hundred sixty
six (14,166) shares of the Common Stock of the Company for each one
hundred thousand dollars ($10,000) in principal amount of such
Note. The Company will also enter into a Registration Rights
Agreement in substantially the form attached hereto as
Exhibit C providing for “piggyback” registration
rights for the Warrants and the underlying shares of Common
Stock.
1.4
Closings . The purchase and sale of the Notes (each a
“Closing”) will take place at the offices of Seyfarth
Shaw LLP, 815 Connecticut Avenue, N.W., Suite 500, Washington,
D.C. at such time as the parties shall mutually agree. The Company
may sell additional Notes, with a principal amount of $10,000 or
any multiple thereof until December 31, 2007, to such persons
as the Company may determine. Any such sale shall be upon the same
terms and conditions as those contained herein, and such persons or
entities shall become parties to this Agreement and shall have the
rights and obligations of an Investor hereunder.
1.5
Delivery . At the Closing, the Company will deliver to each
Investor a Note, the original principal amount of which shall be in
such amounts as are indicated next to each Investor’s name on
Schedule A attached hereto, a Warrant.
1.6 Extension
of Demand Date . At the Company’s election, the Demand
Date may be extended up to ninety (90) days. In the event the
Company elects to extend the Demand Date
C-1
as provided
herein, the Company shall provide notice to the Investor and shall
provide each Investor with an additional Warrant under the same
terms and conditions, and in the same amount, as each
Investor’s initial Warrant.
1.7 Right of
First Offer . If, within one hundred twenty (120) days
after execution hereof, the Company seeks to borrow additional
funds, it shall notify Investor in writing. Investor shall have two
(2) business days within which to offer in writing to lend to
the Company the lesser of (i) the first one million dollars
($1,000,000) of additional funds sought by the Company or
(ii) the entire amount of additional funds sought by the
Company, upon the same terms and conditions as are contained
herein. If Investor makes such an offer within the two (2) business
day period, closing on such Loan shall take place within two
(2) business days after such offer is made. Time is of the
essence for purposes of this paragraph. If the Company seeks less
than one million dollars within the time set forth in the first
sentence hereof, Investor shall have the right, in accordance with
this paragraph, to lend to the Company up to a cumulative total of
one million dollars. Notwithstanding the previous sentence, if
Investor declines to offer to lend funds to the Company in
accordance with this paragraph, or if Investor fails to make such
offer timely, it shall have no further rights hereunder and the
Company may borrower such amounts on such terms as it deems
appropriate from any other person.
2.
Representations and Warranties of the Company . Except as
disclosed in the Disclosure Schedule attached hereto as
Exhibit D, the Company hereby represents and warrants to the
Investor as follows:
2.1
Organization, Standing and Power . The Company is a
corporation duly incorporated, validly existing and in good
standing under the laws of the State of Maryland and has all
requisite corporate power and authority to own, lease and operate
its properties and to carry on its business as contemplated to be
conducted (the “Business”).
2.2 Authority
and Enforceability . The Company has all requisite corporate
power and authority to execute and deliver this Agreement and to
perform fully its obligations hereunder. The execution and delivery
of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary
corporate action on the part of the Company. This Agreement has
been duly executed and delivered by the Company and, assuming this
Agreement constitutes a valid and binding agreement of the other
parties hereto, this Agreement constitutes a legal, valid and
binding obligation of the Company, enforceable against the Company
in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors’ rights and
remedies generally and subject, as to enforceability, to general
principles of equity, regardless of whether enforceability is
considered in a proceeding at law or in equity.
2.3 Accuracy of
Public Filings . The representations, warranties and other
statements of the Company contained in the Prospectus on file with
the Securities and Exchange Commission (“SEC”) and all
other documents on file with SEC taken as a whole, do not contain
any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements contained therein
not misleading as of the respective dates of such
filings.
2.4 Use of
Proceeds . All of the proceeds of the Loans will be used to
purchase convertible debentures of MBL Infrastructures Limited
(“MBL”) pursuant to a Debenture
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Subscription
Agreement (the “DSA”) among MBL, the Company and
certain other persons to be defined as the “Promoters”
in such Agreement Such convertible debentures are herein referred
to as the “Debentures.”
3.
Representations and Warranties of the Investor . The
Investor hereby represents and warrants that:
3.1
Authorization . Investor has full power and authority to
enter into this Agreement, the Note and the Warrant (collectively,
the “Loan Agreements”), and that the Loan Agreements
constitute valid and legally binding obligations of such Investor,
enforceable in accordance with their respective terms.
3.2 Purchase
Entirely for Own Account . The Notes, the Warrants and any
Common Stock purchased upon exercise of the Warrants (collectively,
the “Securities”) will be acquired for investment for
Investor’s own account, not as a nominee or agent, and not
with a view to the resale or distribution of any part thereof, and
the Investor has no present intention of selling, granting any
participation in, or otherwise distributing the same. The Investor
does not have any contract, undertaking, agreement or arrangement
with any person to sell, transfer or grant participation in any of
the Securities to such person or to any third person. The Investor
has full power and authority to enter into this
Agreement.
3.3 Disclosure
of Information . The Investor believes it has received all of
the information it considers necessary or appropriate for deciding
whether to purchase the Note and the Warrant. The Investor has had
an opportunity to ask questions and receive answers fr
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